Billionaire Alki David's FilmOn X, formerly Aereokiller, argued that a properly technology-agnostic interpretation of the Copyright Act affords it summary adjudication determining it qualifies for a Section 111 compulsory license allowing it to redistribute others’ content. Such a finding would clear FilmOn of claims for copyright infringement from plaintiffs Fox, ABC, NBC and CBS in their broader combined lawsuit.
FilmOn said that it has submitted its application for a compulsory license to the Copyright Office and has paid the mandatory licensing fees but the office has so far sat on the application because of this and other pending cases throughout the country.
“It now falls upon this court to determine whether or not the Copyright Office should process FilmOn X’s filings — and whether or not the American public may experience better access to free, over-the-air television signals retransmitted by companies like FilmOn X,” the company said.
The streaming service, which notes that its remote antenna/DVR technology captures broadcast television signals from the air just like Aereo Inc., said that it fulfills all the requirements of a cable service entitled to a compulsory license.
“The statutory definition of a cable system is plain. FilmOn X fits squarely within this definition, which broadly applies to any entity with facilities in any state that receives primary transmissions from broadcast stations licensed by the FCC and retransmits those signals to its customers,” the company said. “The Aereo decision and the legislative history confirm this common-sense reading of the statute.”
When the Supreme Court found Aereo’s streaming service illegal, it found that it did so in a public performance that amounted to a traditional cable system for all practical purposes, FilmOn said, making it one qualified for a compulsory license.
“The case has always been centered on copyright issues,” FilmOn attorney Ryan Baker of Baker Marquart LLP told Law360 Friday.
Baker noted that if FilmOn doesn’t prevail in this filing, the networks will likely seek damages for the alleged infringement.
The plaintiffs blasted FilmOn’s arguments in their own filing Thursday. Their bid for partial summary judgment sought to waive off FilmOn’s affirmative defense and counterclaim on Section 111 grounds, arguing instead that FilmOn has already failed to get another court to listen to its compulsory license defense.
“FilmOn has already litigated its Section 111 defense unsuccessfully before a federal district court in New York and thus the doctrine of res judicata bars FilmOn X from re-litigating that same issue before this court,” the plaintiffs said.
The networks said that FilmOn’s argument doesn’t hold up on its own merits.
“The Copyright Office has repeatedly concluded, over a period of more than fifteen years, that Internet services fall outside Section 111,” the plaintiffs said. “That interpretation is entitled to deference as the text, structure, purpose and history of Section 111 leave no doubt that the Copyright Office’s interpretation of Section 111 is not only reasonable, it is persuasive.”
FilmOn’s reference to the Aereo ruling doesn’t hold up either, according to the filing.
“The court said only that, for purposes of determining whether Aereo ‘performs’ copyrighted works, Aereo was ‘substantially similar’ to a cable system because they both retransmit broadcast programming to the public,” the networks said, arguing that others are also similar to cable systems but don’t automatically qualify for licenses. “Under FilmOn X’s interpretation of Section 111, anyone — including satellite carriers and, indeed, the proverbial ‘kid in the dorm room’ — would be entitled to the Section 111 license.”
An attorney for the plaintiffs did not immediately respond Friday to a request for comment.
Fox is represented by Richard L. Stone and Julie A. Shepard of Jenner & Block LLP.
ABC, NBC and CBS are represented by James S. Blackburn and John C. Ulin of Arnold & Porter LLP.
The defendants are represented by Ryan Baker and Jamie Marquart of Baker Marquart LLP.
The cases are Fox Television Stations Inc. et al. v. BarryDriller Content Systems PLC, case number 2:12-cv-06921, and NBCUniversal Media LLC et al. v. Barry Driller Inc. et al., case number 2:12-cv-06950, in the U.S. District Court for the Central District of California.
— Additional reporting Matthew Heller. Editing by Ben Guilfoy.
